Awrey Bakeries, Inc.

AWREY BAKERIES, INC. 705 Awrey Bakeries, Inc. and Robert Pernell, Jr. Case 7-CA-9060 June 19, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 16, 1972, Trial Examiner Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions,' and to adopt his recommended Order. Upon the entire record in this proceeding, and from my observations of the testimony and demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Awrey Bakeries, Inc. is a Michigan corporation, main- tains its principal office and place of business at Livonia, Michigan, and is engaged in the preparation, sale, and distribution of baked goods and related products. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Council No. 30, United Distributive Workers, Retail, Wholesale and Department Store Union, AFL-CIO, hereinafter called the Union, is, as alleged and admitted in the pleadings, a labor organization within the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Awrey Bakeries, Inc., Livonia, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order. I As Respondent official Joseph P . Young's testimonial admissions with respect to certain portions of his preheanng affidavit, together with the credited testimony of employee Robert Pernell Jr and other evidence set forth by the Trial Examiner, are sufficient to support his findings concerning Respondent's unlawful conduct, we find it unnecessary to rely on the remainder of the affidavit. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Trial Examiner: This case came on to be heard before me at Detroit, Michigan, on February 3 and 4, 1972, on a complaint issued by the General Counsel of the National Labor Relations Board,' and an answer filed by Awrey Bakeries, Inc., hereinafter called the Respondent. In substance, the issues raised by the pleadings in this case relate to whether or not the Respondent violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, by acts and conduct hereinafter detailed. At the conclusion of the hearing, all parties waived oral argument, but a brief has been received from the Respondent and has been duly considered. I The complaint in this case is predicated on a charge filed on October 26, 1971 , as amended on November 3, 1971, and copies of the original and first amended charges were served on the Respondent on October 28 and III. THE RESPONDENT'S AGENTS The complaint alleges and the answer admits that Michael J. O'Reilly and Donald M. Nichols, who are respectively the Respondent's plant manager and person- nel director, are supervisors and agents of the Respondent within the meaning of Section 2(11) of the Act. By a stipulation arrived at during the course of the hearing, the Respondent further admits, as alleged in the complaint, that John P. Young, its hourly administrator; William R. Gibson, its supervisor of the roll department; and Wallace Lee Cole, its supervisor of the shipping department, are the Respondent's supervisors and agents within the meaning of the Act. Accordingly, I find that at all times material to this proceeding O'Reilly, Nichols, Young, Gibson, and Cole have been the Respondent's supervisors within the meaning of Section 2(11) of the Act, and have acted as agents of the Respondent within the meaning of Section 2(13) of the Act. IV. THE UNFAIR LABOR PRACTICES ALLEGED The complaint alleges that on October 20, 1971,2 the Respondent violated Section 8(a)(1) of the Act by interrogating and threatening to discharge Robert Pernell, Jr., the charging party herein, because of his union activities, sympathies, and desires. The complaint further alleges that on the same date the Respondent informed Pernell that he would be retained in his employment with the Respondent only if he refrained from any further union or protected concerted activities. The General Counsel has also alleged, and argues, that by threatening Pernell with discharge and conditioning his retention on the unlawful demand that he abandon his Section 7 rights, Respondent November 3, 1971, respectively 2 All dates recited hereinafter are 1971, except where specified to the contrary 197 NLRB No. 106 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(3), as well as Section 8(a)(1) of the Act. The complaint further alleges that on October 29, the Respondent violated Section 8(a)(3) and (4) of the Act by discharging Pernell because of his refusal to forego the exercise of his rights to engage in union and other protected activities, and because Pernell filed a charge with the Board on October 26. In its answer, the Respondent generally denies the commission of any unfair labor practices, and although it admits the discharge of Pernell, the Respondent denies that the discharge was motivated in any way by reasons proscribed by the Act. The particularities of the Respon- dent's defenses will be considered in further detail below. The record reflects that in its bakery operations the Respondent employs approximately 500 hourly rated employees, and this complement apparently includes both production and maintenance personnel. The Respondent's operations fluctuate to some degree with the season of the year, and its prime production period extends from late fall through the Christmas season. Because of the seasonal increase in production requirements, and also to provide vacation replacements, the Respondent hires seasonal employees to augment its regular production complement. At times material to this case, the Respondent had bargaining agreements with several labor organizations, including an agreement with the labor organization herein, Council No. 30, United Distributive Workers, Retail and Department Store Union. This agreement covers the employees at the Respondent's Livonia, Michigan, plant, except for certain classifications represented by other labor organizations. Seasonal employees are, however, specifical- ly excluded from the unit description of this bargaining agreement, and are not entitled to the terms and conditions of employment specified therein. The bargaining agree- ment between the Respondent and the Union also requires new employees to become and remain members of the Union after 30 days of employment. As construed by the Respondent, the union-security provision is not properly applicable to seasonal employees. The Respondent has a personnel department which is directed and supervised by Personnel Director Donald M. Nichols. All of the Respondent's hourly rated employees are subject to the overall supervision and control of Hourly Administrator John P. Young, but the day-to-day work activities of the employees are directed by line supervisors. As determined by production requirements, Young has authority to hire new employees, but the authority for final determinations on discharges and layoffs resides in Nichols. The record also reflects that the Respondent has an orientation program for its new employees, and a policy requiring periodic evaluations during the initial stages of their employment. Both the orientation program and the policy pertaining to periodic evaluations are applicable to seasonal, as well as regular employees. Robert Pernell, Jr., the charging party in this case, was hired by the Respondent and began work on or about September 29, 1971. Approximately 15 other new employ- ees were hired by the Respondent during this same period of late September and early October. Pernell was recom- mended for employment by another employee of the Respondent, Junior Tatum. Prior to his acceptance for employment, Pernell completed an application form and was interviewed by Young and Maintenance Supervisor Ted Reed.3 The record evidence pertaining to Pernell's application for employment and ultimate hire is far from clear. Young testified that Pernell was hired on September 29 and this date is substantiated by documentary evidence from the Respondent's business records. Young was not sure, however, whether he gave Pernell the application form on that or some previous date, and he was equally unsure whether he gave Pernell the application form, or whether it was given to Pernell by Young's secretary. Pernell testified that he was given the application form and after completion he attempted to return the form to Young. Young was not available at the time and Pernell talked to Ted Reed. Reed gave Pernell an additional form for a physical examination, and after the examination Pernell returned the form to Young. Young approved Pernell for hire, and executed an employment form reflecting that Pernell was hired as a seasonal employee effective October 5, at an hourly rate of $3.02 per hour. Pernell was given a choice of shifts and because of a shift differential he opted to work on the evening shift, beginning at 3:30 p.m. The record -'so reveals, according to the testimony of both Young and Pernell, that the latter was seeking ajob in the Respondent's maintenance department. As Pernell testified, Young told him he could talk to the maintenance supervisor. Ted Reed was called in and explained to Pernell that the maintenance department had a new employee who was still on a trial basis, and counseled Pernell to take a production job in anticipation of a possible future vacancy in the maintenance department. Pernell agreed to take the production assignment. The evidence in the record is equally conflicting as to the date on which Pernell actually began his employment with the Respondent. The employment form signed by Young and Pernell reflects that his employment was effective October 5, but another record from the Respondent's files reflects that Pernell's hire was effective on September 29. Pernell's testimony on this point was not explicit, but he did testify that during the period of approximately I month from hire to discharge he worked in four different departments and was supervised by four different line supervisors. Among those supervisors was Wallace Cole in the shipping department and William Gibson in the roll department. On October 20, Pernell and other newly hired employees attended an orientation session conducted by Nichols, Young, and Plant Manager Michael J. O'Reilly. The Respondent's officials talked to the employees concerning safety, work rules, and other aspects of the employment 9 On direct examination, Pernell testified that he was interviewed by Pernell admitted that he might have talked to Reed Nichols denied that he Nichols, and on cross-examination he adhered to his testimony that this had any preemployment conversations with Pernell, and in this respect I interview was conducted by Nichols and not by Reed. When confronted, credit Nichols' testimony however, with the statement that Nichols and Reed bear some resemblance, AWREY BAKERIES, INC. 707 relationship. The orientation session was then opened to discussion and questions from the employees were invited. Pernell testified that an individual he referred to as the superintendent, apparently referring to O'Reilly, talked to the employees about initiation fees and union dues, and then talked about promotions. This prompted Pernell to ask some questions. He first stated that it was his understanding that World War II veterans were exempt from paying a union initiation fee. O'Reilly agreed that he would look into the matter. In the course of discussing promotions, O'Reilly had explained job postings and informed the employees that openings for jobs were posted on the bulletin board for 3 days and that new employees were eligible for considera- tion if employees with seniority failed to apply. During the question-and-answer period, Pernell alluded to O'Reilly's comments about promotions, informed O'Reilly that he accomplished all the requirements to obtain a maintenance job, and asked, "Where do I go from here?" According to Pernell, Young replied to his question by stating that two new employees had been hired in the maintenance department and, if anything happened to them, Pernell would be given consideration. After the orientation session broke up, Pernell left the plant to get something to eat before the start of his shift at 3:30 p.m. When he returned to the plant, he was informed by the receptionist that John Young had wanted to see him but had left to attend a meeting. Pernell waited for about 15 minutes and left to clock in. Sometime later in the afternoon Pernell saw Young in the shipping department talking to Supervisor Cole, and after this Young walked over to talk to Pernell. Pernell's version of what ensued reflects that he opened the conversation by asking Young where he (Pernell) was going to work the following week. Young replied that he was not going to work many people and Pernell countered with the question, "Why? You hired people." Young replied: I'm going to be fair with you. You blew your chance at the meeting. Now the superintendent and the plant manager and the personnel director have told me to throw you out of here, because I have been told if you stayed here and became a full member with ninety days seniority here at this plant you will take over the union and run it just like they want to. I will guarantee you that you won't be no ninety days in here. You can work on, but if I hear any more from you, you understand you are done. In response to further questions on direct examination, Pernell repeated that Young stated that if he heard any more Pernell was through. More explicitly, Pernell related that Young said, "Don't be talking nothing about no union to these people here in the plant, because if I hear any more from you, you are going." Pernell also testified that Young stated he had heard that Pernell would take the Union over and run it. Pernell replied that he hadn't been talking to the people and complained to Young that he was not being paid the $3.17 plus shift differential specified in the contract, but was only receiving $3.02 per hour. Young replied: Well, I can pay you a dollar sixty cents an hour, you understand, and there is nothing you can do about it. That's all I have to pay you. Pernell continued to work for the Respondent during the following week and, on October 26, he filed a charge with the Board alleging that the Respondent threatened him with discharge because of his union activities. A copy of this charge was served and received by the Respondent on October 28. Young's testimony concerning the orientation session and the events which followed vanes in some essentials from the versions related by Pernell. Young's testimony concerning the events and conversations of October 20 contains, moreover, some inconsistencies . Some of these inconsistencies are apparent from Young's testimony itself, and others are apparent when his testimony is compared with his admissions concerning the contents of a prehear- ing statement given to an agent of the Board.4 Young testified to the orientation session, recalled who was present and the topics discussed, and also recalled that Pernell rose during the course of the session and asked questions. Young claimed that he was unable to recall what questions Pernell asked, but he admitted they may have concerned an opening in the maintenance department. Young could not recall what he replied, but denied that he told Pernell that he was only qualified as a machinist and not as a qualified maintenance man. Questioned further, Young admitted that in his pretrial statement he had stated that this was his reply to Pernell's question about a maintenance job. Young next related that while he did give Pernell this reply, the reply was made at the time Pernell was hired. Questioned further, Young testified that his reply to Pernell was made after the conclusion of the orientation session, but was not made in the presence of other employees. As to the conversation with Pernell which followed the orientation session,5 Young testified that he approached Pernell after he and Nichols had reviewed an evaluation of Pernell which had been accomplished by Wallace Cole. Young also admitted that prior to his confrontation with Pernell he was in receipt of information that Pernell had been talking to other employees about the Union and working conditions, and comparing these factors with his experience at prior places of employment. More particular- ly, and from the contents of his pretrial statement, Young admitted that on October 21 he had received information that in a locker or lunchroom conversation Pernell had 4 Young's statement was not introduced in evidence, but portions of it were read into the record during the course of his testimony as a witness called by the General Counsel Young is an admitted agent of the Respondent and, from the description of his duties and responsibilities, I find that he is also a managing agent and authorized to speak for the Respondent with respect to events and circumstances relevant to the issues in this case Accordingly, I have considered Young's admissions concerning the contents of his pretrial statement, not only as the admissions tend to contradict his sworn testimony, but as affirmative evidence in support of my findings herein International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Local No 61 and Groveton Papers Company, 144 NLRB 939, 941 and Anthony C Markitell and John H Dent, Partners, d/b/a Trafford Coach Lines, 99 NLRB 399. 5 Young's testimony reflects that the conversation in the shipping department occurred on October 21, but this could have resulted from the General Counsel's use of that date, rather than October 20, in phrasing his questions 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announced that when he became a union member conditions were going to change. Young was initially unable to recall, however, whether he discussed this report with Pernell during the conversation in the shipping department. As to the conversation itself, Young testified that he informed Pernell that he had received the evaluation, that it would not avail Pernell to pursue the maintenance job at that time, but if something did develop Pernell would be given consideration by the supervisor of the maintenance department. Young admitted that he questioned Pernell about his attitude toward his work and also questioned him about a conversation he had had with other employees concerning working conditions. According to Young, Pernell admitted to the conversation. According to his further testimony, Young stated that after Pernell respond- ed affirmatively to his question about the conversation with other employees, Young cautioned him: I told him in his best interest most employees keep their best foot forward during the probationary period or the first few weeks of their employment, that it would be in his best interests to keep his opinion to himself, or to approach a union steward who at this point would be reluctant to take up his cause, or resort to the grievance procedure once [until) he had become a union member. Questioned again from his pretrial statement, Young admitted that: I asked him, was there a conversation between you and other employees concerning conditions? Pernell said he had such conversations. I told him this was not the proper attitude in working at Awreys'. In further response to the General Counsel's questions, Young admitted that he told Pernell that if he had problems around the plant he should come to Young, and cautioned Pernell that the Union would not get involved until Pernell became a member. Young added: I told him that if he talked to people about how he wanted to change the union here he was putting himself in a precarious position, as this indicated a bad attitude. At some stage during his conversation with Pernell in the shipping department, Young expressed doubt that Pernell would last 90 days, and added, "This is your last day." Pernell stated that he needed a job badly and Young relented to the extent he agreed that Pernell could have another week, that he would be assigned to the roll department, but that Young would not promise anything beyond that. Pernell worked the whole of the following week in the roll department under the supervision of Gibson. Pernell was paid at the end of the regular pay week on Thursday, October 28. On Friday, October 29, just as Pernell was completing the shift begun on the previous evening, he was approached again by Young. Young asked to see Pernell in his office, and Pernell replied that he had just finished his shift and was on his way home. According to Pernell, Young said, "Well, this is it," and added that he had told Pernell that if he heard any more, ". . . this is it." Pernell asked what was wrong and Young replied that Pernell was not panning out. Pernell asked if this meant he was not doing his work, and Young replied, "Yes." Gibson was standing nearby and Pernell walked over and asked him, "Why did you tell this man I was not doing my work?" Gibson replied, "Oh, no, I didn't say a damn thing." Pernell then walked back to Young, followed by Gibson, and reported Gibson's words. Gibson repeated his state- ment, "Oh, no, I didn't tell him a damn thing." Pernell asked, "What now, Mr. Young." Young replied, "Well, for other reasons." Pernell asked for a layoff slip or some document he could use to file for unemployment compen- sation and Young replied that he did not intend to do that. Pernell then asked for the Union's committeeman, so that he could file a grievance. According to Pernell's testimony, Young answered: No, you cannot file no grievance here. I told you this is it, and you are done. During his week of employment in the roll department, Pernell was evaluated the second time and , according to the testimony of William Gibson, he left the completed evaluation on Young's desk on Thursday, October 28. According to Young, he received the evaluation on October 29, with a note from Nichols, "John take action after review of other evaluation." Without discussing the matter with Nichols, Young proceeded to discharge Pernell. Young denied that he saw the charge filed by Pernell on October 26 and served on the Respondent on October 28, before he effectuated Pernell's discharge. Nichols' testimony is that he reviewed the evaluations of Pernell made by Cole and Gibson, made the decision to terminate Pernell, and directed Young to take the appropriate action. Nichols did not discuss the evaluations with either Cole or Gibson prior to ordering Young to take action, although he was aware that both evaluations had been erased and altered in part. According to Nichols, Pernell's "poor attitude" contributed significantly to his decision to effectuate the discharge. Nichols also testified that he received a copy of the charge filed by Pernell, but he was unable to recall whether he first saw the charge before or after he directed Young to take action to discharge Pernell. The Respondent contends that Pernell was discharged because he was an unsatisfactory employee, and that the discharge action was taken in good faith by the Respon- dent based on the two evaluations completed by Supervi- sors Cole and Gibson. In support of this contention, the Respondent argues that Pernell's attitude was bad and, more particularly, that Pernell wanted a maintenance job and was not interested in a production job which he considered beneath his dignity and capabilities. Arguing further to the point of this contention, the Respondent asserts that Pernell had expectations of recall to former employment and, accordingly, had no interest in retaining employment with the Respondent. Alternatively, the Respondent also contends that Pernell was hired as a seasonal employee and had no expectation that his employment would continue beyond the Christmas season. The evaluation system utilized by the Respondent for its new employees requires the line supervisors to submit periodic written reports, filled out and signed after they have had an opportunity to observe the new employees at work. The evaluations of new employees are usually made AWREY BAKERIES, INC. 709 on a weekly basis, but in some instances a lapse of 2 or more weeks may ensue between evaluations. The form used for the evaluations contains four categories for rating the employee consisting of (1) work attitude, (2) attendance, (3), work habits, and (4) pro- duction. Each category for rating is further subdivided into three sections : good, fair, or poor. There are additional spaces on the form for the supervisor to insert comments on the employee's weak points, strong points, and potential. A space is also provided for the supervisor to mark "Yes" or "No" to the question of whether he would continue to employ the employee . The form also contains a direction to the supervisor, "Take the time to let this employee know how he is getting along." The form further recites a date by which the supervisor must complete the evaluation and return it to Nichols or Young. The evaluation of Pernell completed by Cole bears a date of October 23, but Cole was unable to recall when he submitted the evaluation. Young, on the other hand, testified that he saw the evaluation before he talked to Pernell after the orientation session, and that Cole's evaluation was the motivating reason for his discussion with Pernell . Cole rated Pernell's work attitude as good, attendance good, work habits poor, and production poor. On its face, Cole's evaluation reflects that Pernell's production had been checkmarked as fair, but the mark had been erased. As to potential, Cole inserted "This man cannot make it in the shipping end of it," and Cole indicated that he would not continue to employ Pernell. The evaluation completed by Gibson is dated for return on October 29 and Gibson testified that he left it on Young's desk on October 28. In the evaluation, Gibson rated Pernell's work attitude as poor, his attendance as good, his work habits as fair, and his production as fair. Like Cole's evaluation, the form completed by Gibson has an erasure. Pernell's work attitude had been marked good, but this was erased and a check mark inserted in the poor column. As to Pernell's weak points, Gibson inserted "Poor attitude," and he indicated that he would not continue to employ Pennell . The record also reflects that approximately 1 week following Pernell's discharge Young completed a termination notice, which reflects that Pernell was rated fair in all categories of ability, conduct, attendance, and production. The Respondent admits that the evaluations completed by Cole and Gibson were altered at some time by erasure of some entries and insertion of others . The Respondent argues, however, that erasures and changes on evaluation forms are common and it introduced some evidence in support of this argument. I have no reason to doubt the Respondent's evidence in this respect . The question, after all, is not whether evaluations in general are sometimes erased or changed or whether Pemell's evaluations in particular were erased and altered. The relevant questions are who erased and altered Pernell's evaluations and when and why. Young and Nichols were aware of the erasure on the evaluation forms before Pernell was discharged, but according to their testimony they neither made the erasures nor sought to ascertain who did . Cole testified that he could not recall whether or not he erased the entry on Pernell's evaluation for September 23, and he also testified that, if he did not make the erasure, he did not know who did. At a later juncture in his testimony, Cole related that he did not mark Pernell's production as "poor" on the evaluation for September 23. Gibson, to the contrary, admitted that he erased an entry of "good" for Pernell's work attitude on the evaluation for September 29, and substituted an entry of poor. Gibson testified that Pernell began work in his department on Sunday, October 24, and that he completed Pernell's evaluation on Monday night . On Wednesday, October 27, Pernell asked Gibson how he was doing, and Gibson replied that Pernell's work was satisfactory. Gibson further testified that he continued to watch Pernell and thought about the matter of the evaluation while he was at home on Wednesday evening. On Thursday, October 28, Gibson told Pernell to return to work on the grease machine, and, in Gibson's words, Pernell looked at him "sort of strange." Accordingly, Gibson altered Pernell's evaluation to reflect a "poor" work attitude, and left the evaluation on Young's desk when he left at the end of the day's shift. On cross- examination, Gibson repeated that he changed the evalua- tion because Pernell looked at him "strange" when he directed him to return to work on the grease machine. Gibson also testified that Pennell gave him some answer in response to the work direction, but he could not recall Pernell's words. Upon the foregoing and all of the relevant evidence in the record, I am not satisfied that the evaluations of Pernell made by Cole and Gibson were the motivating reason for his discharge. If explained , the erasures and alterations of the evaluation forms might prove no more than the supervisors' change of mind after further observation and reflection. There is no affirmative evidence in the record, however, to identify who erased and altered Pernell's evaluation for October 23, and the record is silent as to the reasons that motivated the change. Nor do I credit Gibson's testimony that the October 29 evaluation was changed from "good" to "poor" because Pernell looked at him "strange," and may have replied to Gibson's work order in words the latter could not recall. Aside from the erasures and alterations, there is other evidence in the record to support the finding that the Respondent used the evaluations as a pretext to cloak a discriminatory motive. The record is clear that neither Nichols nor Young ever discussed Pernell's evaluation with Cole or Gibson before his discharge was ordered , and the evaluations became a subject for discussion only after the unfair labor practice charge was filed. The record is equally clear that, in spite of the clear and explicit direction on the evaluation form, neither Cole nor Gibson ever took time to let Pernell know how he was getting along. Neither supervisor ever complained to Pernell about his job performance or attitude , he was never shown the evalua- tions and never given any explanation of the reasons for the unsatisfactory ratings . On the contrary, in response to Pernell's question, Gibson told him on October 27 that his work was satisfactory. Gibson also admitted in his testimony that on October 29, in the presence of Young, he vehemently denied that he had told Young that Pernell was 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not doing his work and told Pernell that his work was satisfactory or good. Young testified that on October 20 or 21, following the orientation session, he talked to Pernell because Young and Nichols had discussed Pernell and several other employees who were not working out. I do not credit Young's testimony that his confrontation with Pernell was dictated by Cole's evaluation of October 23, which purportedly had already been received and discussed by Nichols and Young. The record evidence leaves consider- able doubt that Cole had completed and submitted his evaluation by that date. If he had, however, the evaluation was not shown to Pernell and Young's version of his conversation with Pernell reflects that the evaluation and its contents was mentioned, if at all, only in passing. As set forth above, it is the Respondent's contention that Pernell's "poor attitude" contributed significantly to the decision to discharge him. Insofar as this characterization describes the Respondent's motive for Pernell's termina- tion, the testimony in support of the contention is credited. Insofar, however, as the testimony of the Respondent's representatives reflects that Pernell's "poor attitude" was exemplified by the poor quality of his work, his lack of interest in a production job, and Pernell's belief that he would be recalled to some prior employment,6 the evidence is rejected. The Respondent's characterization of Pernell's "poor attitude" reflects, on the contrary, its dissatisfaction about his comments concerning working conditions, and his expression to other employees that he intended to do something about these conditions. His exercise of protect- ed concerted activities was known and objected to by the Respondent. When Pernell persisted in continuing to exercise his lawful rights by filing a charge, his termination followed in short order.? I have rejected the Respondent's defense that Pernell was discharged because of his poor work performance and work attitude as reflected on his evaluations for October 23 and October 29. For the reasons explicated below, I also reject the Respondent's alternative contention that Pernell was hired as a seasonal employee and had no expectations for continued employment beyond the end of the Christ- mas season. The record reflects that about J5 other seasonal employees were hired at about the same time as Pernell. According to evidence adduced by the Respon- dent, all of these seasonal employees had been terminated, for one reason or another, by the time of the hearing in this case. The record also reflects that the employment form for 6 At the time of his hire, Pernell gave the Respondent a copy of a document dated July 27, 1971, reflecting that Pernell's employment with Riley Stoker Corporation was terminated because that employer ceased operations in Detroit and transferred the work to its plant at Ene, Pennsylvania. I I do not credit the testimony elicited by the Respondent that the discharge of Pernell was ordered before the charge was served and received, and I particularly discredit Young's testimony that he did not see the charge at any time prior to his termination of Pernell. It is admitted that the Respondent received a copy of the charge on October 28. Nichols admitted that he was aware of the charge, but he was unable to recall whether this was before or after he directed Young to effectuate Pernell's discharge. It is incredible in my view that the filing of the charge would have been withheld from Young, a responsible management official in charge of 500 hourly rated employees, including the employee who filed the charge The contention is even more incredible when considered in the light of Nichols' Pernell indicates that he was hired as a "seasonal" employee. The Respondent concedes that Pernell was seeking employment in the Respondent's maintenance department. The record is clear that an opening in the maintenance department was not available at the time, but the possibility of future employment as a maintenance man was held out to Pernell by the Respondent's officials. Pernell was told that if probationary employees in the maintenance department did not work out to the Respon- dent's satisfaction, he would be eligible for consideration. On these grounds, Pernell agreed to accept employment as a production worker, and the Respondent's tacit promise to consider Pernell for a future vacancy in the maintenance department was again voiced during the course of the orientation session on October 20. With respect to the designation of "seasonal" on Pernell's employment form, the record indicates that all employees hired by the Respondent during the period of at least 8 to 9 months preceding the hearing in this case, were hired on employment forms reflecting seasonal employ- ment. The Respondent concedes that employees hired as seasonals are eligible for consideration for permanent employment, and Young admitted that at the time of hire Pernell was told, albeit he was hired as a temporary employee, that retirements and other openings in the plant might make it possible for him to stay beyond Christmas. Nor is the evidence pertaining to Pernell's expectations for consideration for permanent employment limited to the remarks made by the Respondent's officials at the time of his hire and repeated during the course of the orientation session on October 20. As the Respondent concedes, the bargaining agreement with the Union excludes seasonal employees and, if Pernell was in fact only a seasonal employee, he would have had no obligation under the terms of the contract to pay an initiation fee and periodic dues. The record reflects, nevertheless, that union dues were deducted from Pernell's wages for the week ending October 23.8 As I find in agreement with the Respondent that seasonal employees are excluded from the union- security provision of the contract, the imposition on Pernell of a requirement to pay dues to the Union warrants the further finding that Respondent considered his employment status as something more than temporary. There are also elements of Young's remarks to Pernell after the orientation session which indicate that Pernell had expectations of continued employment beyond season- al tenure. The Respondent has a probationary period of 90 testimony that his decision to discharge Pernell was made and communicat- ed to Young prior to October 29 1 find it impossible to believe that knowing of the filing of the charge, Nichols would have allowed Young to finalize the discharge, without bringing the matter of the charge to his attention. 8 In his testimony, Young agreed that Pernell's dues were deducted on October 23 He also testified that it has been a practice for some years, upon the insistence of the Union, that seasonal employees pay union dues, that they are required to execute an authorization at the time of hire , and that dues are deducted at the end of the first month's employment, if the employee has worked a total of 2 weeks Aside from Young's naked assertion, however, there is no evidence in the record to substantiate the alleged practice Considering the issue in this case , I am reluctant to find that an employer with an employee complement of this magnitude, with 30 years experience in labor-management relations and signatory to four collective-bargaining agreements, would knowingly and wilfully capitulate to any such unlawful demand of the Union. AWREY BAKERIES, INC. days, which is applicable to full-time permanent employ- ees, but does not apply to seasonal employees. In his conversation with Pernell on October 20 or 21, Young made reference to the probationary period, and informed Pernell that he would not last the 90 days. During the course of the conversation, Young also told Pernell that the Union would not represent him for purposes of a grievance until he had become a member of the Union. If the Respondent had really considered Pernell to be a seasonal and temporary employee, Young's reference to Pernell's observance of the probationary period is meaningless. Similarly, if Pernell had no expectations beyond seasonal employment, Young's reference to his right to grieve when he obtained membership in the Umon is equally meaning- less. To counter the implications of the evidence of discrimi- natory motivation reviewed above, the Respondent has advanced several additional contentions and arguments. The Respondent argues that it has been in business for 60 years, has 30 years of collective-bargaining history, has bargaining agreements with three different labor organiza- tions, and has a racially mixed complement of employees. Accordingly, the Respondent contends that this evidence indicates a complete absence on its part of any discrimina- tory or antiunion attitude, and similarly indicates a lack of any inclination to discourage or diminish the protected rights of its employees. I find no ment in this contention. Whatever has been the Respondent's relationship with this Union and other labor organizations, the past history of amicability in the bargaining relationship does not disprove the evidence of discriminatory intent and motivation vis-a-vis Pernell. The credited evidence is that Pernell publicly criticized working conditions in the Respondent's plant and proclaimed the intent to do something about the situation when he became a union member. When information of this activity came to the Respondent's attention, Pernell was interrogated, threatened with discharge, and warned that future like activity would jeopardize his continued employment. Pernell filed a charge complaining of the Respondent's conduct and within 1 day after receipt of the charge by the Respondent, Pernell was summarily discharged. The Respondent also argues that Pernell was an unreliable witness, but that in any event Pernell's self- serving testimony with respect to the crucial issues of this case implies but a scintilla of evidence of any impropriety on the Respondent's part. I am mindful that there are variations between the testimony of Young and Pernell, particularly with respect to the chi onology of events and the exact content of Young's remarks to Pernell on October 20 or 21. The variations are trivial. Even, however, if I were to discredit Pernell's testimony in its entirety, which I do not, I would still find on the basis of Young's testimony that the Respondent violated the Act as alleged in the complaint.9 Considering the evidence in a posture most persuasive of the Respondent's defenses, I find that Young was apprised of Pernell's discussions with other employees in the locker 9 In amving at the findings set forth in this Decision , I have taken cognizance of the whole record, including admissions made by the Respondent's witnesses when questioned by the General Counsel, as well as 711 or lunchroom, to the effect that Pernell would change working conditions when he became a member of the Umon. Upon receipt of this information, Young confront- ed Pernell and asked him if he had been party to a conversation with other employees concerning working conditions. Pernell admitted to such a conversation, and was warned by Young that it would be in Pernell's best interests to keep his opinions to himself. In Young's own words he warned Pernell that, "if he talked to people about how he wanted to change the union here he was putting himself in a precarious position, as this indicated a bad attitude." Young told Pernell that it was doubtful that he would last for the term of the 90-day probationary period, and informed Pernell that he was terminated effective as of that day. Young relented, however, and agreed to one further week of employment for Pernell, subject to the condition that Pernell forego any further exercise of his rights to engage in union or other protected activities. On this evidence, a finding is clearly warranted that Young interrogated Pernell about his conversations with other employees concerning working conditions and union representation. A further finding is warranted that Young threatened Pernell that any continuation or repetition of this conduct would result in his summary discharge. With this evidence of animus, motivation, and intent, an additional finding is warranted that Respondent dis- charged Pernell on October 29, because Pernell persisted in his right to engage in union and protected activities, and because he violated Young's warning by filing a charge with the Board. I also reject the Respondent's contention and arguments that Pernell should be discredited and the complaint dismissed because Pernell is litigious and filed multiple charges against each and every employer for whom he worked during recent years. The record does reflect that Pernell filed other charges with the National Labor Relations Board, the Equal Employment Opportunity Commission, and the Michigan Civil Rights Commission. Pernell filed some of these charges on his own behalf and some on behalf of his coworkers. Some of the charges were dismissed and others were still pending at the time of the hearing in this case. Whatever the outcome of these charges, Pernell's recourse to statutory law designed to protect employees again invidious discrimination because of their race, color, or the exercise of legally protected activities is no foundation for discrediting his testimony. Similarly, the evidence relating to the prior charges filed by Pernell, with this and other governmental agencies, is not grounds to support a finding that his discharge, as proved in this proceeding, was for reasons beyond the protection afforded to him by the National Labor Relations Act. In summary, I find and conclude that by interrogating Pernell concerning his conversations with other employees about working conditions and his contemplated union activities for the future, the Respondent violated Section 8(a)(1) of the Act. I also find and conclude that by threatening Pernell with discharge if he persisted in the exercise of his rights to engage in union and protected admissions made by them as witnesses for the Respondent . Fruit and Vegetable Packers and Warehousemen, Local 760 v N LR B, 316 F 2d 389, 391 (C.A D.C.) 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, the Respondent engaged in an additional violation of Section 8(a)(1) of the Act. I reject, however, the General Counsel's contention that the Respondent also violated Section 8(a)(3) by conditioning Pernell's contin- ued employment on the unlawful demand that he forego any further exercise of his right to engage in union or protected activities. Young's threats to Pernell are cogniza- ble within the framework of Section 8(a)(1), but at the time the threats were made no discrimination ensued and no changes were made effecting the wages, hours, or terms and conditions of Pernell's employment. I do find and conclude, nevertheless, and contrary to the Respondent's contentions of discharge for cause, that Pernell's termination was effectuated by the Respondent because Pernell persisted in the exercise of his rights to engage in union and other protected activities and because Pernell filed a charge against the Respondent with the National Labor Relations Board. By this conduct the Respondent violated Section 8(a)(3), (4), and (1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the foregoing findings and conclusions, I hereby make the following: VI. CONCLUSIONS OF LAW 1. The Respondent, Awrey, Bakeries, Inc., is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Council No. 30, United Distributive Workers, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Michael J. O'Reilly, Donald H . Nichols, John P. Young, William R. Gibson, and Wallace Lee Cole are, and have been at all times material to this proceeding, supervisors of the Respondent within the meaning of Section 2(11) of the Act and have acted as agents in its behalf within the meaning of Section 2(13) of the Act. 4. By interrogating its employee Robert Pernell, Jr., about his conversations with other employees relating to working conditions and his contemplated future union activities, the Respondent violated Section 8(a)(1) of the Act. 5. By threatening its employee Robert Pernell, Jr., with discharge if he continued or persisted in the exercise of his rights to engage in union or protected concerted activities, the Respondent violated Section 8(a)(1) of the Act. 6. By discharging its employee Robert Pernell, Jr., because he continued and persisted in the exercise of his 10 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. rights to engage in union and protected concerted activities, and because he filed a charge with the National Labor Relations Board, the Respondent violated Section 8(a)(3), (4), and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. VII. THE REMEDY Having found that the Respondent has engaged in, and is engaging in, unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative actions to effectuate the policies of the Act. More particularly, and with respect to Robert Pernell, Jr., I will recommend that the Respondent offer Pernell immediate and full reinstatement to his former job, with all seniority, rights, and privileges he enjoyed prior to the acts of discrimination against him, or, if that job no longer exists, to a substantially equivalent position. I will further recommend that the Respondent make Robert Pernell, Jr., whole for any loss of earnings he suffered by reason of the discrimination, by payment to him of a sum equal to what he would have earned in the absence of the discrimination, less net earnings during such period, with backpay computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and the backpay shall carry interest at the rate of 6 percent per annum as established in Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend that the Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the right of reinstatement under the terms of these recommendations. In several respects the unfair labor practices committed by the Respondent are of such nature and character as to strike at the basic rights of its employees safeguarded by the Act, and, accordingly, I shall recommend that it cease and desist from infringing in any other manner upon the rights of its employees guaranteed by Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 10 ORDER The Respondent, Awrey Bakeries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their conver- sations with other employees pertaining to working conditions or contemplated future union activities. (b) Threatening employees with discharge because they persist in the exercise of their rights to engage in union or other protected, concerted activities. (c) Discharging employees because they have engaged in, or persist in engaging in, the exercise of their rights to 102.48 of the Rules and Regulations, be adopted by the Board and become its Ifindings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. AWREY BAKERIES, INC. participate in union or protected concerted activities or because they have filed a charge with the National Labor Relations Board. (d) In any other manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative actions necessary to effectuate the policies of the Act: (a) Offer employee Robert Pernell, Jr., immediate and full reinstatement to his former job, with- all seniority, rights, and privileges he previously enjoyed, or, if that job no longer exists, to a substantially equivalent position, and make Robert Pernell, Jr., whole for his loss of earnings in the manner set forth in the Trial Examiner's Decision entitled "The Remedy." (b) Notify the above-named individual immediately, if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business at Livonia, Michigan, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith.12 1i In the event that the Board Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 12 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX 713 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE' WILL NOT interrogate our employees about conversations they have had with other employees concerning working conditions or their contemplated future union activities. WE WILL NOT threaten employees with discharge because they refuse to discontinue the exercise of their rights to engage in union or other protected concerted activities. WE WILL NOT discharge employees because they have engaged in, or because they refuse to discontinue the exercise of their rights to engage in, union or concerted protected activities, or because they have filed a charge with the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL offer employee Robert Pernell, Jr., immedi- ate and full reinstatement to his former job, with all seniority, rights, and privileges he previously enjoyed or, if that job no longer exists, to a substantially equivalent position, and we will make Robert Pernell, Jr., whole for his loss of earnings, with interest at 6 percent per annum. AwREY BAKERIES, INC. (Employer) Dated By (Representative) (Title) We will notify the above-named individual immediately, if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Tele- phone 313-226-3200.